United States District Court, N.D. Texas, Dallas Division
SHERRI R. LOWE, Plaintiff,
BURLINGTON STORES, INC., Defendant.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
D. STICKNEY, UNITED STATES MAGISTRATE JUDGE
to 28 U.S.C. § 636(b), the district court referred this
case to the United States Magistrate Judge for pretrial
management. See Standing Order of Reference, ECF No.
18. Before the Court is Defendant Burlington Stores,
Inc.'s Partial Motion to Dismiss [ECF No. 7]. For the
following reasons, the district court should GRANT
Defendant's motion and dismiss this action with
R. Lowe (“Plaintiff”) brings this suit against
Burlington Stores, Inc. (“Defendant”) for an
accident occurring at one of Defendant's stores in
Dallas, Texas. Compl. 1, ECF No. 3. On May 7, 2016, Plaintiff
alleges that she went shopping with her mother at
Defendant's business. Id. at ¶ 4. Plaintiff
alleges that she reached up to grab a pair of shoes off of a
shelf and a shoe fell, injuring her left foot. Id.
Plaintiff brings ten causes of action against Defendant
including: (1) negligence; (2) products liability; (3) breach
of implied warranty; (4) breach of express warranty; (5)
breach of contract; (6) battery; (7) assault; (8) res ipsa
loquitur; (9) violations of the Deceptive Trade Practices Act
§§ 17.41-17.63; and (10) vicarious liability.
Id. at 2 ¶ 9-6 ¶ 37. Plaintiff requests
damages exceeding $250, 000.00. Id. at 7. Plaintiff
also requests for punitive and mental anguish damages.
Id. at 6-7. Defendant moves to partially dismiss
Plaintiff's Complaint under Federal Rule of Civil
Procedure (“Rule”) 12(b)(6) for failure to state
a claim. Def.'s Mot. to Dismiss, ECF No. 7; Fed.R.Civ.P.
12(b)(6). Plaintiff untimely filed her response to
Defendant's motion on December 23, 2016. Pl.'s Resp.,
ECF No. 19. Defendant did not file a reply and the
time to do so has passed. See Docket. This matter is
ripe for determination.
Rule 12(b)(6), the Court may dismiss a complaint that fails
to state a claim upon which relief can be granted.
Fed.R.Civ.P. 12(b)(6). In analyzing a motion to dismiss, the
Court should accept “all well-pleaded facts as true,
viewing them in the light most favorable to the
plaintiff.” Martin K. Eby Constr. Co. v. Dallas
Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)
(internal quotations omitted). However, the factual
allegations must support plausible cause of action and
sufficiently to raise the right to relief above a speculative
level. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555-56 (2007). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Determining whether a
complaint states a plausible claim for relief is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Id., 556 U.S. at 679.
Texas law, the elements of a negligence claim are: (1) a
legal duty owed by one person to another; (2) breach of that
duty; and (3) damages proximately caused by the
breach.” Bowman v. CitiMortgage Inc., No.
3:14-CV-4036-B, 2015 WL 4867746, at *3 (N.D.Tex. Aug. 12,
2015) (Boyle, J.) (citing Nabors Drilling, USA, Inc. v.
Escoto, 288 S.W.3d 401, 404 (Tex. 2009); Lane v.
Halliburton, 529 F.3d 548, 565 (5th Cir. 2008)).
alleges Defendant owed Plaintiff a duty to exercise
reasonably prudent and ordinary care in the displaying of the
shoes. Compl. 2 ¶ 10, ECF No. 3. Plaintiff alleges that
Defendant violated this duty through eleven different
failures by Defendant. Id. at ¶ 10(A)-(J).
Court determines that Plaintiff has failed to state an
actionable claim for negligence. Plaintiff's Complaint
fails to allege that Defendant owes Plaintiff a legal duty.
Plaintiff also does not assert that she suffered any damages.
Even upon the Court examining Plaintiff's medical
records, it appears that Plaintiff did not suffer any damages
in this case. See Compl. 10-11, ECF No. 3. Plaintiff
also fails to allege facts showing that Defendant is the
proximate cause of her alleged injuries. “Proximate
cause requires both cause in fact and foreseeability.”
D. Hous., Inc. v. Love, 92 S.W.3d 450, 454 (Tex.
2002) (citing Farley v. M M Cattle Co., 529 S.W.2d
751, 755 (Tex. 1975)). “Foreseeability exists when
‘the actor as a person of ordinary intelligence should
have anticipated the dangers his negligent act creates for
others.'” Id. (citation omitted).
Plaintiff's bare recital of the elements of a negligence
claim and conclusory allegations are not enough to survive a
Rule 12(b)(6) challenge. The Court raises sua sponte
that the district court should dismiss Plaintiff's claim
for negligence pursuant to Rule 12(b)(6).
82 of the Texas Civil Practice and Remedies Code (Product
Liability Act) is written broadly to include any claim for
personal injury caused by a defective product, whether the
claim is based on strict liability, negligence, or
misrepresentation.” Escalante v. Deere &
Co., 3 F.Supp.3d 587, 589 (S.D.Tex. 2014) (citing Tex.
Civ. Prac. & Rem. Code § 82.001(2)). “Under
§ 82.003 of the Product Liability Act, a seller that did
not manufacture the product is only liable upon proof of one
or more of seven distinct bases for liability.”
Id.; see Tex. Civ. Prac. & Rem. Code
alleges that Defendant displayed the shoes in a manner
rendering it defective, unsafe, and unreasonably dangerous.
Compl. 3 ¶ 13, ECF No. 3. Plaintiff makes no other
factual allegations or basis for her claim. Plaintiff does
not set forth “more than labels and conclusions”
in her products liability claim. Twombly, 550 U.S.
at 555 (citation omitted). Plaintiff does not state any
factual allegations of Defendant's liability under any of
the seven areas of § 82.003(a). Tex. Civ. Prac. &
Rem. Code § 82.003(a). These conclusory allegations are
insufficient to state “a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. The district court should grant Defendant's Motion
to Dismiss Plaintiff's products liability claim.
of Implied Warranty and Express Warranty
assertion of breach of an express warranty requires: 1) an
affirmation or promise made by the seller to the buyer; 2)
that such affirmation or promise was part of the basis for
the bargain, e.g. that the buyer relied on such affirmation
or promise in making the purchase; 3) that the goods failed
to comply with the affirmation or promise; 4) that there was
financial injury; and 5) that the failure to comply was the
proximate cause of the financial injury to the buyer.”
Lindemann v. Eli Lilly & Co., 816 F.2d 199, 202
(5th Cir. 1987) (citation omitted). “Unlike an action
for breach of an implied warranty which evolved from tort
liability, an action for breach of an express warranty sounds
in contract.” Id. (citation omitted).
“Implied warranties are created by operation of law and
are grounded more in tort than in contract.” Melody
Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 352 (Tex.
alleges that Defendant breached both an implied warranty and
express warranty that “it displayed the
‘shoes' in a good and workmanlike manner.”
Compl. 3 ¶¶ 16, 19, ECF No. 3. However, Plaintiff
fails to cite to any contract between her and Defendant for
which to base an express warranty. Plaintiff also does not
allege that Defendant made any promises or affirmations to
Plaintiff. Plaintiff's breach of an express warranty
fails. Therefore, the Court looks to if Plaintiff states a
plausible claim for breach of an implied
argues that Texas recognizes implied warranties for: good and
workmanlike construction, good and workmanlike performance of
services, and merchantability. Def.'s Mot. 4-5, ECF No.
8. Plaintiff does not cite to any statute or case law in
Texas supporting a claim for breach of an implied warranty
for a “good and workmanlike manner.” Thus, the
Court liberally construes Plaintiff's independent claims
for breach of an implied warranty as: implied warranty of
good and workmanlike performance of services; implied
warranty of good and ...